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This is a Bill, not an Act. For current law, see the Acts databases.
BANKRUPTCY LEGISLATION AMENDMENT (ANTI-AVOIDANCE) BILL 2005
2004-2005
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Bankruptcy Legislation Amendment
(Anti-avoidance) Bill 2005
No. , 2005
(Attorney-General)
A Bill for an Act to amend the Bankruptcy Act 1966,
and for related purposes
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 ii
Contents
1 Short
title ...........................................................................................1
2 Commencement.................................................................................1
3 Schedule(s) ........................................................................................2
Schedule 1--Amendments
3
Bankruptcy Act 1966
3
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 1
A Bill for an Act to amend the Bankruptcy Act 1966,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Bankruptcy Legislation Amendment
5
(Anti-avoidance) Act 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1
The 28th day after the day on which this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 3
1
Schedule 1--Amendments
2
3
Bankruptcy Act 1966
4
1 Subsection 5(1) (definition of examinable period)
5
Repeal the definition, substitute:
6
examinable period has the meaning given by section 139CA.
7
2 At the end of section 77C
8
Add:
9
(3) Notes taken down and signed by a person who attends before the
10
Official Receiver or an authorised officer under paragraph (1)(b),
11
and the transcript of the evidence given by the person at the
12
attendance:
13
(a) may be used in evidence in any proceeding under this Act
14
whether or not the person is a party to the proceeding; and
15
(b) may be inspected:
16
(i) by the person, without fee; and
17
(ii) if the notes and evidence relate to matters concerning
18
the bankruptcy of the person or of another person--by
19
the trustee and a person who states in writing that he or
20
she is a creditor, without fee; and
21
(iii) by any other person on payment of the fee prescribed by
22
the regulations.
23
3 Paragraph 81(17)(a)
24
Omit "in which the person is a party", substitute "whether or not the
25
person is a party to the proceeding".
26
4 Paragraph 116(1)(c)
27
After "section 139D", insert "or 139DA".
28
5 At the end of paragraph 116(1)(d)
29
Add "or 139EA".
30
6 Paragraph 120(1)(b)
31
Schedule 1 Amendments
4 Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005
Repeal the paragraph, substitute:
1
(b) the transferee gave to the transferor:
2
(i) no consideration for the transfer; or
3
(ii) consideration of less value than the market value of the
4
property.
5
7 Subsection 120(3)
6
Repeal the subsection, substitute:
7
(3) Despite subsection (1), a transfer is not void against the trustee if:
8
(a) in the case of a transfer to a related entity of the transferor:
9
(i) the transfer took place more than 4 years before the
10
commencement of the bankruptcy; and
11
(ii) the transferee proves that, at the time of the transfer, the
12
transferor was solvent; or
13
(b) in any other case:
14
(i) the transfer took place more than 2 years before the
15
commencement of the bankruptcy; and
16
(ii) the transferee proves that, at the time of the transfer, the
17
transferor was solvent.
18
8 After subsection 120(3)
19
Insert:
20
Rebuttable presumption of insolvency
21
(3A) For the purposes of subsection (3), a rebuttable presumption arises
22
that the transferor was insolvent at the time of the transfer if it is
23
established that the transferor:
24
(a) had not, in respect of that time, kept such books, accounts
25
and records as are usual and proper in relation to the business
26
carried on by the transferor and as sufficiently disclose the
27
transferor's business transactions and financial position; or
28
(b) having kept such books, accounts and records, has not
29
preserved them.
30
9 Subsection 120(4)
31
After "gave", insert "to the transferor".
32
10 At the end of subsection 120(5)
33
Amendments Schedule 1
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 5
Add:
1
; (e) if the transferee is the spouse of the transferor--the transferee
2
granting the transferor a right to live at the transferred
3
property, unless the grant relates to a transfer or settlement of
4
property, or an agreement, under the Family Law Act 1975.
5
11 Paragraph 121(4)(a)
6
After "gave", insert "to the transferor".
7
12 Paragraph 121(4)(b)
8
After "know", insert ", or could not reasonably have inferred,".
9
13 After subsection 121(4)
10
Insert:
11
Rebuttable presumption of insolvency
12
(4A) For the purposes of this section, a rebuttable presumption arises
13
that the transferor was, or was about to become, insolvent at the
14
time of the transfer if it is established that the transferor:
15
(a) had not, in respect of that time, kept such books, accounts
16
and records as are usual and proper in relation to the business
17
carried on by the transferor and as sufficiently disclose the
18
transferor's business transactions and financial position; or
19
(b) having kept such books, accounts and records, has not
20
preserved them.
21
14 Subsection 121(5)
22
After "gave", insert "to the transferor".
23
15 At the end of subsection 121(6)
24
Add:
25
; (e) if the transferee is the spouse of the transferor--the transferee
26
granting the transferor a right to live at the transferred
27
property, unless the grant relates to a transfer or settlement of
28
property, or an agreement, under the Family Law Act 1975.
29
16 Division 4A of Part VI (heading)
30
Repeal the heading, substitute:
31
Schedule 1 Amendments
6 Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005
Division 4A--Orders in relation to property of entity
1
controlled by bankrupt or from which bankrupt
2
derived a benefit
3
17 After section 139C
4
Insert:
5
139CA Definition of examinable period
6
(1) For the purposes of this Division, the examinable period is:
7
(a) in the case of an application for an order in relation to a
8
related entity of the bankrupt--the period beginning:
9
(i) if, at a time or times during the period of 1 year
10
beginning 5 years before the commencement of the
11
bankruptcy, the bankrupt became insolvent--at that
12
time, or at the first of those times, as the case may be; or
13
(ii) in any other case--4 years before the commencement of
14
the bankruptcy;
15
and ending on the day on which the application is made; or
16
(b) in any other case--the period beginning:
17
(i) if, at a time or times during the period of 3 years
18
beginning 5 years before the commencement of the
19
bankruptcy, the bankrupt became insolvent--at that
20
time, or at the first of those times, as the case may be; or
21
(ii) in any other case--2 years before the commencement of
22
the bankruptcy;
23
and ending on the day on which the application is made.
24
(2) For the purposes of subparagraphs (1)(a)(i) and (b)(i), a rebuttable
25
presumption arises that a bankrupt became insolvent at a time
26
during the period referred to in the relevant subparagraph if it is
27
established that the bankrupt:
28
(a) had not, in respect of that time, kept such books, accounts
29
and records as are usual and proper in relation to the business
30
carried on by the transferor and as sufficiently disclose the
31
transferor's business transactions and financial position; or
32
(b) having kept such books, accounts and records, has not
33
preserved them.
34
18 Subsection 139D(1)
35
Amendments Schedule 1
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 7
After "section 139A", insert "for an order in relation to a respondent
1
entity other than a natural person".
2
Note:
The heading to section 139D is altered by adding at the end "other than a natural
3
person".
4
19 Paragraph 139D(1)(d)
5
After "derived", insert "(whether directly or indirectly)".
6
20 After section 139D
7
Insert:
8
139DA Order relating to property of natural person
9
If, on an application under section 139A for an order in relation to
10
a respondent entity that is a natural person, the Court is satisfied
11
that:
12
(a) during the examinable period, the entity acquired an estate in
13
particular property as a direct or indirect result of financial
14
contributions made by the bankrupt during that period; and
15
(b) the bankrupt used, or derived (whether directly or indirectly)
16
a benefit from, the property at a time or times during the
17
examinable period; and
18
(c) the entity still has the estate in the property;
19
the Court may make an order of a kind referred to in subsections
20
139D(2) and (3), whether or not the bankrupt has ever had an
21
estate in the property.
22
21 Subsection 139E(1)
23
After "section 139A", insert "for an order in relation to a respondent
24
entity other than a natural person".
25
Note:
The heading to section 139E is altered by omitting "entity's net worth" and
26
substituting "net worth of entity other than a natural person".
27
22 After section 139E
28
Insert:
29
Schedule 1 Amendments
8 Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005
139EA Order relating to increase in value of property of natural
1
person
2
If, on an application under section 139A for an order in relation to
3
a respondent entity that is a natural person, the Court is satisfied
4
that:
5
(a) during the examinable period, the value of the entity's
6
interest in particular property increased as a direct or indirect
7
result of financial contributions made by the bankrupt during
8
that period; and
9
(b) the bankrupt used, or derived (whether directly or indirectly)
10
a benefit from, the property at a time or times during the
11
examinable period;
12
the Court may, by order, direct the entity to pay to the applicant a
13
specified amount not exceeding the amount by which the value of
14
the entity's interest in the property increased as a result of the
15
financial contributions made by the bankrupt.
16
23 Subsection 139F(1)
17
After "section 139D", insert "or 139DA".
18
24 Subsection 139F(2)
19
After "section 139E", insert "or 139EA".
20
25 Paragraph 139G(1)(a)
21
After "section 139D", insert "or 139DA".
22
Note:
The heading to section 139G is altered by omitting "sections 139D and 139E" and
23
substituting "this Division".
24
26 Subsection 139G(2)
25
After "section 139D", insert "or 139DA".
26
27 Subsection 139G(3)
27
After "section 139E", insert "or 139EA".
28
28 Subsection 139H(1)
29
After "section 139D", insert "or 139DA".
30
29 Subsection 139H(1)
31
After "section 139E", insert "or 139EA".
32
Amendments Schedule 1
Bankruptcy Legislation Amendment (Anti-avoidance) Bill 2005 No. , 2005 9
30 Application of amendments
1
(1)
The amendment made by item 2 applies in relation to an attendance
2
under section 77C of the Bankruptcy Act 1966 that occurs on or after
3
the commencement of this item.
4
(2)
The amendment made by item 3 applies in relation to an examination
5
under section 81 of the Bankruptcy Act 1966 that occurs on or after the
6
commencement of this item.
7
(3)
The amendments made by items 6 to 15 apply to a transfer of property
8
made on or after the commencement of this item.
9
(4)
The amendments made by items 1, 4 and 5 and 16 to 29 apply in
10
relation to an examinable period that commences on or after the
11
commencement of this item.
12